Conviction of accessory before the fact affirmed

There was sufficient evidence that appellant participated in a first-degree murder as an accessory before the fact.

Overview

Wilson, Durham and appellant were indicted for the first-degree murder of Poole. Appellant was convicted of first-degree murder as an accessory before the fact.

At appellant’s trial, Wilson testified under a cooperation agreement with the commonwealth. The prosecution presented evidence that Durham shot Poole because appellant said Poole had raped her.

The prosecution also presented evidence that appellant “contrived with, instigated, and incited Durham to perpetrate Poole’s first-degree murder and had reason to know of his criminal intent.”

A jury convicted appellant of first-degree murder. She appealed, arguing there was insufficient evidence to support the verdict. She further argues that the trial court should have excluded from evidence an Instagram exchange between appellant and Durham that occurred several weeks before the murder.

Legal standards

“In the trial of an accessory before the fact, the Commonwealth must prove the following elements beyond a reasonable doubt: ‘the commission of the crime by the principal, the accessory’s absence at the commission of the offense, and that before the commission of the crime, the accessory was  “in some way concerned therein … as (a) contriver, instigator or advisor.’ …

“Moreover, the evidence must ‘establish that the accessory before the fact shared the criminal intent of the principal.’ …

“Specifically, ‘the accused must either know or have reason to know of the principal’s criminal intention’ and ‘must intend to encourage, incite, or aid the principal’s commission of the crime’ …

“‘The amount of incitement or encouragement to commit the crime is irrelevant if the encouragement in fact induces the principal to commit the offense.’ …

“Each of the foregoing elements present ‘questions of fact to be resolved by the fact finder.’”

Durham’s involvement

Appellant claims she cannot be liable as an accomplice because there was insufficient evidence that Durham murdered Poole. “We disagree. …

“The evidence shows that Durham and Wilson illegally bought Glock pistols. Photos from Durham’s cell phone and his Instagram account show a Glock pistol with 9mm hollow point ammunition. There was evidence collected at the murder scene that a “Glock-type firearm” shot bullets and cartridges. One bullet “appeared consistent with ‘hollow point’ ammunition.”

Wilson’s testimony showed that Durham had the opportunity to murder Pool and “attempted to conceal his criminal involvement.

“Shortly before the shooting, Wilson drove Durham to appellant’s apartment, where he watched Durham speak to someone through appellant’s bedroom window.

“After Durham returned to Wilson’s car, they parked on the shoulder of Chippenham Parkway. Durham then exited the car and disappeared through the woods, traveling toward appellant’s apartment before ‘running’ back ‘less than thirty minutes’ later to escape in Wilson’s car.”

Dunham later “disposed of the two Glock pistols that he and Wilson had illegally obtained two months prior, exhibiting Durham’s efforts to avoid detection from which a jury could rationally infer his ‘consciousness of guilt.’ …

“At trial, undisputed facts established that the perpetrator repeatedly shot Poole with a firearm as Poole sat unarmed in a parked vehicle, inflicting a ‘mortal wound’ with ‘a deadly weapon with little or no provocation.’ …

“That evidence proved that Poole’s killing was malicious and premeditated[,] … thus satisfying the first element of appellant’s liability as an accessory before the fact.”

Appellant’s encouragement

“[T]he record established that appellant contrived with, instigated, and incited Durham to perpetrate Poole’s first-degree murder and had reason to know of his criminal intent. …

“One month before the shooting, Durham expressed a desire and willingness to kill at appellant’s behest when, on March 23, 2018, he wrote on Instagram, ‘Please lemme kill him, lol let me shoot him’ and ‘Imma kill him,’ in response to appellant’s disclosure that a man had raped her.

“Thus, appellant ‘[had] reason to know’ that Durham wanted and intended to perform criminal acts of violence at her request if incited through allegations of sexual assault.

Further, appellant testified before a grand jury that Poole raped her. “Additionally, appellant’s Instagram records from April 29 demonstrated that mere hours before Poole’s murder, appellant wrote, ‘Me getting raped,’ when asked, ‘What is the one thing you wish never happened?’

“That evidence supplied the jury with compelling evidence of appellant’s motive to facilitate Poole’s murder. …

“Furthermore, the record established that appellant not only instigated Poole’s murder by inciting Durham to kill, but she also lured Poole to her apartment complex to create an opportunity for Durham to do so.”

The “evidence collectively supports the rational inference that after Poole allegedly sexually assaulted her, appellant enticed Poole to meet her at her apartment complex so that Durham could murder him in the parking lot.”

In addition, when appellant knew that detectives were at her school to question her, she did a factory reset of her cell phone. “From such actions, the jury properly inferred appellant’s ‘guilty knowledge of, and participation in’ Durham’s murder of Poole.”

Evidence correctly admitted

“Commonwealth’s Exhibit 56 demonstrated that one month before Poole’s murder, appellant sent Durham an Instagram message stating, ‘I should say [a man] raped me,’ to which Durham replied, ‘Please lemme kill him, lol let me shoot him … Let’s shoot him,’ and ‘Imma kill him.’

“Based on those messages, the jury could infer that appellant knew that a claim of sexual assault could induce Durham to volunteer to perform criminal acts of violence at her behest.

“Those messages were therefore relevant and admissible to demonstrate Durham’s protective relationship with appellant and to establish that appellant ‘knew or had reason to know’ of Durham’s criminal intent when she later communicated a similar rape allegation to him specifically regarding Poole. …

“Appellant’s contention that the exchange was too temporally remote from the incident is meritless, as ‘[e]very fact, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue is relevant.’”

Affirmed.

Dailey v. Commonwealth, Record No. 0490-21-2, April 26, 2022. CAV (Fulton) from the Circuit Court of Chesterfield County (Johnson) Todd M. Ritter for appellant. Leah A. Darron for appellee. VLW 022-7-104, 20 pp. Unpublished opinion.